Is SAM the Definitive, Single Source for Required FAR & DFARS Representations and Certifications?

Many Small Businesses complete their required Federal Acquisition Regulation (FAR) and Defense Federal Acquisition Regulation Supplement (DFARS) Representations and Certifications annually in the Federal System for Award Management (SAM.Gov) and then forget about them until their next renewal period. In the event there has been a change in the businesses’ small business status or they are no longer eligible for a small business or socieo economic program, the business is responsible for updating their SAM registration, noting the exception on a proposal or quote response and, in some cases, providing notice to the certification agency. This article highlights a situation where total reliance upon completed Representations and Certifications in SAM may keep an otherwise qualified small business from winning a government contract due to their failure to fill out new Representations and Certifications that are not yet part of the SAM registration process.

The following case highlights this insidious issue. Vandenberg AFB issued a total small business set aside Solicitation FA4610-14-C-0015 under FAR Part 15 Contracting for Negotiations for the replacement of fire suppression systems at three buildings. The basis of award was Low Price Technically Acceptable. General Instructions to Offerors in Solicitation Section L stated “… any offeror who submits an incomplete package may be considered non-responsive. Furthermore, the solicitation stated “Non-compliance with the instructions and RFP may result in an unfavorable proposal evaluation and may be grounds to eliminate the proposal from consideration for contract award”. Lastly, the solicitation stated that “… the government intends to award the contract without discussions”.

The solicitation contained the following Provision 52.204-8 ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2014) but did not contain provision 52.204-7. As noted below, this provision allows offerors to submit their Representations and Certifications electronically via SAM.Gov.

“52.204-8(b)(2) If the provision at 52.204-7 is not included in this solicitation, and the offeror is currently registered in System for Award Management (SAM), and has completed the Representations and Certifications section of SAM electronically, the offeror may choose to use paragraph (d) of this provision instead of completing the corresponding individual representations and certifications in the solicitation. The offeror shall indicate which option applies by checking one of the boxes: ( ) Paragraph (d) applies. ( ) Paragraph (d) does not apply and the offeror has completed the individual representations in the solicitation. “

The small business offeror checked the block that “( X ) Paragraph (d) applies” and believed erroneously that he did not have to do anything else with respect to this Representations and Certifications since he had an active and current SAM registration. The small business later received a notice of unsuccessful offer from the contracting officer. Since the small business’s proposed price was lower than the apparent successful offeror’s price, the business requested a post award debrief in accordance with FAR 15.506. During the oral debrief, the business learned that their proposal was deemed to be “non-responsive” since the small business did not fill out the representation at DFARS 252.209-7993 Representation by Corporations Regarding an Unpaid Delinquent Tax Liability or A Felony Conviction under any Federal Law –Fiscal Year 2014 Appropriations (Deviation 2014 OO0009) (FEB 2014).

In addition to noting that this provision was incorporated into Solicitation Section K in full text, the contracting officer pointed out the following Section L Instructions to Offerors that highlight the need to submit SAM Representations and Certifications AND any Representations and Certifications NOT included in the SAM.Gov printout.

“4. Chapter 4 – Section K. Complete the representations, certifications, and acknowledgments. Section K shall be returned in its entirety. If the representations, certifications and acknowledgments (Section K) are completed through System for Award Management (SAM.Gov) then Section K need not be submitted in its entirety. Instead attach a copy of the provision not include in the SAM. Gov printout.”

A review of the Small Business’s SAM FAR and DFAR Report (Representations and Certifications) indicates that there are only seven DFARS provisions in SAM and the DFARS provision cited above is not one of them.

On occasion, the SAM.Gov website posts announcements such as the following to alert registrants to update their SAM Representations and Certifications.

“UPDATE: On July 14, 2014, SBA increased the monetary-based industry size standards to account for inflation. You will see an exclamation point “!” next to the ‘Small Business’ value for those NAICS codes impacted in your registration’s Reps & Certs. Log into SAM, review, and resubmit your registration to apply the new size standard.” (Source:SAM.Gov accessed 1 October 2014 3:39 PM PDT).

The above news and announcement implies that SAM.Gov will periodically update required Representations and Certifications. However, the situation discussed above clearly indicates that is NOT the case. It appears that there is not a single “Federal System for Award Management” and that businesses must not assume that their active registration in SAM.Gov will make them compliant and responsive to all federal government solicitations. Additionally, it is imperative that offerors carefully review solicitations and instructions to offerors so that they are not automatically thrown out of the competition for being deemed “non-responsive” to the solicitation. As always, it pays to read the entire solicitation before responding.

Jeffrey R. Cuskey, CPCM, CFCM, CSCM, CPP is currently the Senior Procurement Specialist/Counselor with the Monterey Bay PTAC. He has over 25 years of experience in federal and defense acquisition, contracting, program management and business financial management. In addition to twenty years of active duty service with the US Navy, Jeff served for twelve years as a full time MBA faculty member at the Naval Postgraduate School (NPS), Monterey, CA, developing and teaching defense focused graduate level Government Acquisition, Contracting and Program Management courses. In addition to earning a MS in Acquisition & Contracting from NPS, Jeff is a Certified Professional Contracts Manager (CPCM), Certified Federal Contracts Manager (CFCM), Certified Schedules Contracts Manager (CSCM) and Certified Procurement Professional (CPP).

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